C-247/85, Commission v. Belgium
| Author | European Commission |
| Pages | 47-51 |
Page 47
Judgment of the Court of 8 July 1987. - Commission of the European Communities v Kingdom of Belgium. - Failure to comply with a directive - Conservation of wild birds. http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=61985J0247
The Commission points out that, under national law, certain species of wild birds may in principle be hunted, although those birds are not listed in Annex II to the Directive and cannot therefore be hunted under Article 7. As regards the practical application of this provision, the Commission observes that, under several ministerial orders, the hunting of blackbirds, jackdaws and magpies which are not listed in Annex II, was authorized in the years 1981 to 1984. At the hearing, the Commission conceded that, as regards the Flemish Region, the Order of 27 June 1985 amending the Law on hunting of 28 February 1982 did comply with the requirements of the Directive. However, that order was adopted after the present case had been brought before the Court .
In the view of the Belgian Government, there is no provision in the Directive requiring certain species of birds to be classified in a category of birds which may not be hunted. The fact that certain birds not listed in Annex II have been classified as "gibier" (game) under the Belgian rules is not an infringement of the Directive. Only an express decision of the competent authority could authorize the hunting of the species concerned so that only such a decision could come into conflict with the provisions of Article 7.
In this regard, it must be stated that the national legislation must guarantee that the species of birds not listed in Annex II may not be hunted. Under Article 7, it is permitted only to provide that, owing to their population level, geographical distribution and reproductive rate throughout the community, the species listed in Annex II to the Directive may be hunted. In the national law species of birds not listed in Annex II to the Directive are classified as "game" so that in principle they may be hunted. Even if those species may in fact be hunted only if the competent authorities lay down each year, for each species and for a defined area, the opening and closing dates of the hunting season, the competent authorities still have the power to authorize the commencement of hunting of species which are not listed in Annex II to the Directive but which are listed in the national law. In those circumstances, it is impossible to accept the argument of the Belgian Government which maintains in essence that the intended result of the Directive has been attained. National law creates a legally ambiguous situation by not excluding the possibility that species other than those listed in Annex II to the Directive may be hunted in Belgium. The orders mentioned by the Commission also demonstrate that the practical application of the contested provision does not comply with the requirements of Article 7.
The Commission points out that, according to the Royal Decrees, they are only concerned with the protection of birds living in the wild state in the Benelux countries, whereas the protection should be extended to all species of birds living naturally in the wild state in the European territory of Member States in accordance with Article 1(1). At the hearing, the Commission admitted that its complaint no longer concerned the Flemish Region since the Order of the Flemish Executive of 20 November 1985 had harmonized the Royal Decree of 9 September 1981 with the Directive.
In reply the Belgian Government states first that, as regards the Walloon and Brussels regions, the Belgian authorities use the Avifaune de Belgique, a scientific work in which almost all bird species covered by the Directive appear, to define the population of the bird species living naturally in the wild state in their territory. Secondly, a Member State can only take specific measures to protect birds within its territory. Finally, the Commission itself had not been able to present a complete list of bird species living naturally in the wild state in the Member States.
As regards Article 1 of the Royal Decree of 20 July 1972, it must be stated that it limits the protection required by the Directive to the species of birds living in the wild state in the Benelux countries. Such a provision is in accordance with the requirements of the Directive if it also covers bird species living naturally or usually in the European territory of the Member States. In this regard it should be noted that the wording of the provision in question also covers birds which are only passing through the Benelux countries. These birds must be regarded as living naturally in the wild state in the Benelux countries albeit for a limited period. The Commission' s observation that there are species of birds covered by the Directive which do not live permanently in the territory of the Benelux countries and which do not appear in the Avifaune de Belgique is therefore irrelevant. However, the protective effect of the Directive also covers species of naturally occurring birds in the wild state in thePage 48 European territory of another Member State which are not naturally or usually to be found in the territory of the Benelux countries but which are transported there, kept there or marketed there, whether alive or dead . The provision in question does not extend the protection provided for by the Directive to those groups of birds. Article 1 of the Royal Decree does not, therefore, transpose the wider protection required by the Directive completely into the Belgian legal order.
The Commission points out that Article 3(2) of the Royal Decrees allows birds' nests built against houses and adjoining buildings to be disturbed, removed or destroyed in contravention of Article 5(b).
The Belgian Government, on the other hand, takes the view that the provision in question is justified by reasons of public health and safety within the meaning of the first indent of Article 9(1)(a). The presence of nests in chimneys and pipes has led on many occasions to fires and floods and they have also caused problems of hygiene, for example in the food industry.
In this regard it must be stated that Article 5(b) requires the Member States to prohibit in particular deliberate destruction of, or damage to, nests and eggs or removal of nests, whereas Article 3(2) of the Royal Decrees generally permits the removal and destruction of nests built against houses and adjoining buildings.
The reasons given by the Belgian Government to justify the contested provision, namely the prevention of fires, floods and disease, are certainly of such a kind as to justify the removal and destruction of nests under Article 9. However, it is clear from the Belgian Government's own argument that the removal or destruction of nests is necessary only in specific cases in which the higher-ranking interests of public health and security must override the protection of birds and their habitats.
The Belgian rules provide for a derogation which is not sufficiently delimited. As regards the criteria and conditions of Article 9(1), the derogation is not limited to specific situations in which there is no other satisfactory solution than the destruction or removal of nests. The provision in question generally authorizes the disturbance, removal or destruction of birds' nests built against houses and adjoining buildings. However, it cannot be maintained that all nests built against houses and adjoining buildings always represent a danger to health. Furthermore, the derogation does not comply with the formal requirements of Article 9(2) either. The provision does not specify the conditions of risk and the circumstances of time and place in which the derogations may be granted or the controls which will be carried out. In those circumstances it must be stated that the derogation provided for in Article 3(2) of the Royal Decrees does not comply with the prohibition contained in Article 5 and is too general in nature to be justified by Article 9.
The Commission's objection to the Belgian Government is that Articles 4 and 6 of the Royal Decrees allow certain persons to capture, kill, destroy or drive away house sparrows, tree sparrows and starlings and to destroy their eggs, nests and broods and therefore derogate from Articles 5, 6 and 7. Such a derogation is not covered by Article 9.
On the other hand, the Belgian Government maintains that the provisions complained of are justified under Article 9. Serious damage is caused to crops and orchards by the bird species concerned. Moreover, the derogation concerning the starling is justified by reasons of public health since this species is responsible for pollution and noise in a large number of towns and on the coast.
In this regard it is appropriate to recall the wording of Articles 4 and 6 of the Royal Decrees. Article 4(1) provides that: "occupants and hunting-right owners, their attorneys or sworn wardens and officials and servants of the water and forestry authorities shall be permitted at any time to capture, kill, destroy or drive away the birds, as well as their eggs and broods, mentioned in Annex 1 to this decree". Annex 1 to the decree lists the house sparrow, the tree sparrow and the starling. The third subparagraph of Article 4(1) provides that: "the nests of these birds may be disturbed, destroyed or removed at any time ". Finally, the fourth subparagraph of Article 4(1) provides that : "it shall be permitted at any time to transport these birds and their eggs, broods and feathers". Article 6(1) of the decrees allows birds listed inter alia in Annex 1 to the decrees to be kept and exchanged and under Article 6(2) "the birds specified in Annex 1 of the present decree may be bought and sold throughout the year". Although the Commission does not object to the fact that the persons specified are allowed to capture, kill, destroy or drive away the aforesaid birds, it is clear from those provisions that for the birds listed in Annex 1 to the decrees there exists throughout Belgium a permanent derogation from the protection provided for in Articles 5, 6 and 7. As far as concerns the argument put forward by the Belgian Government in this regard, it must bePage 49 observed that the first and third indents of Article 9(1)(a) authorize Member States to derogate inter alia from Articles 5, 6 and 7 in the interests of public health and safety and to prevent serious damage to crops. If the three species specified in Annex 1 to the Royal Decrees cause serious damage to crops and orchards or are responsible for pollution and noise in towns or certain regions, Belgium is in principle authorized to provide for a derogation from the general system of protection provided for in Articles 5, 6 and 7. However, as was stated above, a derogation under Article 9 must, according to Article 9(1), cover specific situations and, according to Article 9(2), comply with the requirements stated therein. The general derogations provided for in Articles 4 and 6 of the Royal Decrees do not comply with those criteria and conditions. The Belgian rules do not indicate the reasons regarding the protection of public health or the prevention of serious damage to crops or other fields mentioned in Article 9(1)(a) which might necessitate the granting to such a wide category of persons of a permanent derogation, applying throughout Belgium, from the protection provided for by the Directive. Furthermore, the derogations do not comply with the criteria and conditions of Article 9(2) in so far as they mention neither the circumstances of time and place in which they may be granted nor the controls which will be carried out. Consequently, it must be stated that owing to their generality, the derogations exceed the limits set by Article 9.
The Commission maintains that it is permitted under Article 6(1) of the Royal Decrees to keep or exchange the bird species listed in Annex 2 to the decrees. However, none of the species listed in Annex 2 to the Royal Decrees appear in Annex III to the Directive.
The Belgian Government does not deny that the list of birds set out in Annex 2 to the Royal Decrees does not correspond to the list of birds specified in Annex III to the Directive. However, it points out that, as regards the Flemish region, only four species may be captured and kept. As for the Walloon region, the list of species set out in Annex 2 to the Royal Decree of 20 July 1972 was reduced to 16 by the Order of the Walloon Regional Executive of 1 July 1982. Moreover, the Belgian Government considers that capture is not a threat to the Belgian bird population and is justified by Article 9(1)(c). As for the policy of granting permits to capture and keep birds, the Belgian Government refers to the Ministerial Order of 14 September 1981 and the Order of the Walloon Regional Executive of 28 July 1982 which impose very restrictive conditions for the grant of such permits. Finally, capture is justified by recreational requirements mentioned in Article 2.
As regards Article 6(1) of the Royal Decrees concerning the list of bird species which may be captured, kept or exchanged, it must be stated at the outset that, under Article 6, keeping for sale is permitted only under certain conditions and then only for the species mentioned in Annex III. Moreover, that list does not correspond to Annex II to the Directive, in which the species which may be hunted and kept under Article 5(e) are set out. As regards the argument of the Belgian Government based on Article 9(1)(c), it must be stated that the Orders of 14 September 1981 and 28 July 1982, implementing Article 6 of the Royal Decrees, subject the people authorized to capture and keep birds and the capture and keeping itself to strict rules and controls. According to Articles 4 and 5 of the Order of 14 September 1981 and Article 5 of the Order of 28 July 1982, the competent authorities are to determine each year the bird species which may be captured, the number of birds which may be captured and the period during which capture may take place. As regards the application of Article 9(1)(c), it must therefore be observed first of all that Article 6(1) of the Royal Decrees gives rise to an uncertain and ambiguous legal situation by allowing the list of birds which may be hunted and kept to be changed as and when the competent administration considers fit. The general and permanent rules laid down in the decrees do not guarantee that the number of birds which may be captured is limited to small quantities, that the period during which their capture is allowed does not coincide with periods in which the Directive seeks to provide particular protection for birds (the nesting period and the various stages of breeding and rearing) or that capture and keeping are restricted to cases in which there is no other satisfactory solution, in particular the possibility that the bird species concerned may reproduce in captivity. The criteria and conditions laid down in Article 9 are not therefore fully transposed into the rules concerned. Consequently, the Belgian Government may not rely on Article 9(1)(c). As regards the argument of the Belgian Government based on Article 2, it must be recalled, as has already been pointed out, that this provision does not authorize the Member States to derogate from the requirements of the Directive .
The Commission maintains that Article 7 of the Royal Decrees allows birds belonging to the species specified in Annexes 2 and 3 to the decrees to be transported provided that certain conditions are fulfilled. Since birds cannot be transported without being kept, the species of birds listed in the Annexes to the decrees ought to correspond, in accordance with Articles 5(e) and 6(1), to the species listed in Annex III to the Directive . However, this is not the case for any of the species in question.
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The Belgian Government maintains that this complaint applies only to the regions of Wallonia and Brussels. As regards the substance of the complaint, it observes that in so far as the capture and keeping of certain species is authorized under Article 9(1)(c) the transport of those species is also authorized.
As regards the question whether the complaint also applies to the Flemish region which the Commission maintained at the hearing, it must be stated that this question is irrelevant since it undoubtedly applies to the rules in force in the regions of Wallonia and Brussels and the complaint is directed against the Kingdom of Belgium which is responsible for ensuring that all its national rules are in conformity with community law. As already stated above, the list of birds specified in Annexes 2 and 3 to the Royal Decrees does not correspond to the list of birds appearing in Annex III to the Directive. The Belgian Government may not therefore rely on the provisions of Article 6(2), (3) and (4). The aforesaid list does not correspond with Annex II to the Directive either. The keeping of these birds is not therefore allowed under Article 5(e). As regards the argument based on Article 9(1)(c), the Belgian Government is right to point out that if the capture and keeping of certain species may be authorized under Article 9(1)(c), their transport may be authorized as well. As well as the capture and keeping of such species, this provision allows any other judicious use. The transport of birds which have been lawfully captured or kept constitutes such judicious use. However, the Commission correctly objects that Article 7 of the Royal Decrees permits the transport of birds which have not been lawfully captured or kept . If the keeping of birds permitted by Article 6(1) of the Royal Decrees does not accord with Articles 5 and 6, the transport of these birds, which presupposes that they are kept, does not accord with those Articles either. Since Article 6 of the Royal Decrees does not comply with the requirements of the Directive, Article 7 does not accord with the provisions of the Directive either.
The Commission has noted that Article 7(2) of the Royal Decree of 20 July 1972 and Article 6(4) of the Royal Decree of 9 September 1981 allow birds of a markedly different colour from birds of the same species, subspecies or variety living in the wild to be kept, transported and bought and sold throughout the year. The Commission maintains that this provision is incompatible with Article 5(e) and Article 6(1).
The Belgian Government argues that the majority of the birds affected by the aforementioned provisions are not naturally occurring birds in the wild state within the meaning of Article 1. Furthermore, those provisions meet the concern to limit the possibility of obtaining birds in the wild state in order to put them in cages. However, the Belgian Government admits that the provision may also apply to "rare mutants ".
In this regard it must be noted that the decrees apply, according to Article 1 thereof, "to all birds belonging to one of the species ... Occurring in the wild state ". The Commission has pointed out, without being challenged on this point by the Belgian Government that chromatic aberrations whereby the colours of birds differ from those of "normal" species occur in nature. It must also be borne in mind that the general system of protection which the Directive seeks to establish concerns all bird species, including those with chromatic aberrations, even if such species are rare. However, as far as those birds are concerned, the provisions in question derogate from the protection afforded by Article 5 (e) and Article 6(1). The complaint must therefore be upheld.
The Commission bases this complaint on the fact that for the regions of Wallonia and Brussels, Article 9(1) of the Royal Decree of 20 July 1972 allows the Minister concerned inter alia to authorize temporary derogations from the general provisions concerning the protection of birds in order to prevent damage or for a purpose of local interest. In the Commission's view, it is essential that the expression "serious damage", which appears in the third indent of Article 9(1)(a), should be used in the Belgian legislation. Moreover, that Article does not recognize local interest as a valid reason for a derogation .
The Belgian Government argues that the concept of serious damage is not defined in the Directive so that interpretations other than those of the Commission are possible. Furthermore, the general scheme of the Royal Decree of 20 July 1972 meets the requirements of Article 9(2).
In this regard it must be noted that the aim of this provision of the Directive is not to prevent the threat of minor damage. The fact that a certain degree of damage is required for this derogation from the general system of protection accords with the degree of protection sought by the Directive. It must, however, be noted that the Commission has not proved that the concept of "damage" in the Belgian rules is not interpreted and applied in the same way as the concept of "serious damage" in the third indent of Article 9(1)(a). This part of the complaint cannot therefore be upheld. As regards the concept of local interest, it must be observed that this does not appear amongst the reasons, listed limitatively in Article 9(1), for which Member States may derogate from thePage 51 protective provisions of the Directive. It follows that the Belgian Government may not justify Article 9(1) of the Royal Decree of 20 July 1972 on the basis of Article 9(1). In those circumstances, it is not necessary to examine whether the Royal Decree in question also satisfies the requirements of Article 9(2). The complaint must therefore be upheld in part.
